Technology as information policy. Copyright is a primary law covering the distribution and use of information and it is the rule that turns information into a commodity (that can be monetized).

Lessig – east coast code (law) and west coast code (software) have the power to regulate and govern activity. Standards and protocols are veiled political choices. And software is being deliberately designed to regulate.

Important to define terms. Copyright has been primarily a way to mediate between businesses/authors. Consumer copyright obligations were loosely understood. Pre-digital culture.

— author’s exclusive right to duplicate, distribute, perform— right to license these rights to others— prohibit others through civil lawsuit

There is a risk of monopoly power and a limit to free speech. So "idea v expression". My copyright ownership ends at some point in time — which makes this very different from tangible property. You don’t have to ask permission to quote – "fair use."

Copyright is a utilitarian method – see the Constitution.

Purpose?"copyright matters because culture matters."– spur production of art and knowledge– scientific progress– develop an American intellectual tradition (we were a young nation) … in the beginning, our copyright laws did not protect European works (!)

Look at TV — for it to work, we had to think of the spectrum as divisible and "ownable"

What is looked at as "technical" copy protection is more than that – it is a "regime of alignment"

Lessig’s "code as law" problem is important but it also masks missing systems, decisions. Political, cultural and economic arrangements are "consequential" — those changes have implications and are harder to spot than looking just at the technology

look at political mobilization and cultural legitimation

how do you describe it so that it appears normal, just, fair

Rather than convincing us to obey a law … make unacceptable user behavior technically impossible … requires convincing manufacturers to design devices that protect the artist.

in the middle of this period – napster, mp3, and computer also became music device.

it was voluntary – how to move from voluntary to compulsory

Content Scramble System (CSS) for DVDsDesigned in 1996 by small industry coalition

to play the dvd, device has to have a key

to get the key, you had to sign a license

device cannot allow copying

must keep decryption process hidden (r

upgrade when called upon

submit to surprise inspections

lock + license

DeCSS

Nov 1999 – used discovered key to "crack" CSS

this was not a hack – it was someone who deduced one of the keys

how to regulate those who don’t sign a license: Digital Milleniuim Copyright Act

designing a tool to bypass this is illegal

gives state power to the CSS encryption and license

benefits and disadvantages of calling on state authority

legal obligation

authority across all parties

can encourage obligations in other nations

lends legitimacy

added bureaucratic inertia

must find justification for state mandate

Broadcast flag for DTV

1990 – Congress calls for "transition" to digital broadcasting

uproar about 1997 "spectrum give-away"

MPAA initiates discussion about copy protection

considered DVD system

"free over-the-air broadcasting" is meant to be "free" – everyone is supposed to be able to get it, "free and open" public airwaves

Build a "broadcast flag" that would go across the airwaves unencrypted — TV would encrypt

2003, FCC agreed to this mandate

Did the FCC have the right to do this? This is not a copyright-imposing organization – did they have a right to regulate technology?

ALA et al v FCC, 2005

Court says no

Jurisdication over signal only

Use of content is not part of FCC mandate

In some ways, they were rejecting DRM argument of regulating "use"

Congress could give the FCC this jurisdication

Courts pulled apar this heterogenous engineering

Separate consequences of DRM as a strategy and DRM systems in particular

Impacts on fair use

What are the consequences of pursuing DRM at all?

These will have consequences about what consumers, Congress, FCC, etc can do

Ideological convergence of content and technology industries

Ideological convergence of content industry and Congress

Encryption as a means to displace law with private licensing?

This is not just a story about copyright, but commerce

DVD player will not play DVDs from another continent

Allows the movie industry to sell different prices, different countries at different times – technological incapability is part of the CSS license but it’s not a copyright issue at all

These kinds of decisions help structure and define how digital culture will work

Q/C: Systems are designed to protect the economic interests of a small set of large media companies. I think the very premise of DRM is analogous to the fundamental principle of copyright.

Q/C: Consumers seem to be missing in this discussion Congress often holds conferences to take advice — the groups of people invited are those who have an interest in copyright protection. There is no consumer/user in that room. P2P is becoming like speeding — activist organizations, free culture movement (youTube) .

Q/C: Long-term issue of archival of digital culture. When 2100 rolls around – none of this stuff will be readable. Copyright "ends" – but DRM does not have an "end" where it pops open.

Q/C: Moral rights (strong in Canada, Europe – not US)

Q/C: Fair use question Transformative and redistributive.

Q/C: I think about Google digitizing a library — what if Google makes a standard? How do you make it not worth the effort to break DRM? It ticks me off that Google is digitizing my book without my permission? My optimistic answer is that the debate can happen — competing paradigms –journalists and academics are unique. Google is the institution that is going to be heard: cultural authority. They can’t be outspent by the pubisher – they have enough cultural weight will move the debate to a different level.

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Kathy On Politics

From 2004-2009 I wrote about politics at About.com. Today I write about politics at TheModerateVoice.com. Public policy issues around technology start here, at WiredPen. Here's a page with my political posts, reverse-chronologically ordered by headline.

365 Project

I launched a 365 (photo a day) project on my birthday in 2010. The theme, in the main, was "iPhone as camera." The first week's postings were made here, then I moved the site to kegill.com; I'm finally using the domain!